Showing the federal government knows how to use technology, too, the Department of Labor Wage and Hour Division announced this week the release of a new iPhone app to assist workers with tracking their compensable work time. Read the news release here. I downloaded the app yesterday and it reminds me all too much of the timekeeping software attorneys have been using for years to track their own time. This one has the potential to be far more dangerous for employers, however, because the app includes such "helpful" tools as a summary of the law on compensable time and the phone number and e-mail address to make a complaint to the Wage and Hour Division. How big a deal it will be in litigation and DOL investigations remains to be seen. The theory is that workers can more easily track their time to compare it against their employer's time records. But just like the timekeeping software attorneys use, you have to remember to turn it on and off for it to do any good. One unanswered question, what percentage of the non-exempt workforce use iPhones and similar devices anyway and how many are permitted to use them on the job? It may be a lot if the early iTunes store reviews are any indication. It already lists a 5-star average rating, with such user comments as "I wish they had this app years ago!" and "I hope we see more like this from the federal government." What's next, an EEOC app for filing a charge of discrimination on your phone? The future is here....

The Sixth Circuit handed down an interesting decision recently that could spell trouble for the defense of claims based on "associational" discrimination. In Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir. Feb. 23, 2009), the Court questioned the degree of association required to state a claim for associational discrimination under federal law.

The facts: Plaintiffs brought claims under Title VII alleging they were subject to associational discrimination as a result of their friendships and association with their African-American co-workers. The district court granted summary judgment on their claims finding they had failed to allege the requisite degree of association. In particular, the court found the Plaintiffs provided no evidence that their friendships “constituted anything other than casual, friendly relationships that commonly develop among co-workers but that tend to be limited to the workplace.”

In a blow to employers, the Court of Appeals reversed and remanded, finding that "If a plaintiff shows that 1) she was discriminated against at work 2) because she associated with members of a protected class, then the degree of association is irrelevant ... Therefore we conclude that the district court erred in requiring a certain degree of association before a non-protected employee may assert a viable claim under Title VII."

Whatever your politics may be, change for the American employer has arrived with the Obama Administration. We find ourselves in unprecedented economic times, to be sure, but the American employer also finds itself in unprecedented territory given the sheer number of legislative changes impacting the employer-employee relationship. If you thought the 1991 amendments to the Civil Rights Act were significant, consider the sweeping impact of new laws like these that have recently gone into effect:

1) Lily Ledbetter Fair Pay Act – extending the statute of limitations on a panoply of employment claims under federal law and effectively gutting the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Company. Read more here from Mark Fahleson’s summary on the DRI blog.

2) ADA Amendments Act – expanding the definition of “disabled” under the ADA and placing even greater emphasis on the interactive reasonable accommodation process. More here from the L&E Group at Waller Lansden Dortch & Davis.

3) COBRA amendments contained within The American Recovery And Reinvestment Act – reopening the eligibility window for COBRA benefits for employees impacted by recent RIFs and imposing on employers the obligation to subsidize those benefits. More here from the Department of Labor.

President Obama has made a point of emphasizing his support of even greater expansion of employee protections. Among the more controversial is the so-called Employee Free Choice Act, which he told union officials recently “will pass.” Under the EFCA, say goodbye to the secret ballot and hello to “card check.” Some have speculated that the EFCA will never pass in its current form but some watered-down version instead. Time will tell.

Of course, law firms are employers, too, and never has that been so apparent as with the rash of RIFs slamming the legal market of late. But have you noticed how few of those RIFs seem to be impacting labor and employment attorneys? And if the latest litigation statistics are any sign, we defense types are going to be busy for some time to come.